2000 PLP 1422 (YLR)

On 24‑2‑1999, a Notification was issued by the Assistant Registrar, Azad J & K University Muzaffarabad whereby under the directions of the Vice‑Chancellor of the University, all the admissions given in M.A. English to those students, who had obtained Third Division in their B.A. Examination, were cancelled. The petitioners feeling aggrieved have assailed this Notification through these Constitutional petitions. In their written statement, the respondents have pleaded that under the standard laid down by the Board of Studies, only those students were eligible to obtain admission in the M.A. English who had passed their B.A. Examination in Second Division. The Post‑Graduate College for Women, Bagh is associated with the Azad Jammu and Kashmir University, therefore, it was incumbent for this College to follow the Rules and Regulations laid down by the Azad Jammu and Kashmir University. The admissions were granted to certain female students in the M.A. English who had passed their B.A. Examination in third division. All these admissions being contrary to the directions and standard laid down by the Azad Kashmir University, were cancelled. In the background of these facts, it was argued by the learned counsel for the petitioners that to obtain education is the fundamental right of every citizen. His clients had disclosed all the particulars to the Principal, Post‑Graduate College for Women, Bagh at the time when they seeked their admissions in the M.A. English. After granting admission, the respondents have no legal competence to cancel the admissions of those students who were granted admissions. He further argued that the admission could be refused only if the seats were not available in that Institution. As very few students had been admitted in the College, therefore, the Principal granted the admissions even to those who had qualified their B.A. Examination in Third Division. After obtaining admission, the petitioners alongwith other students, are continuously studying in the College for last six months, therefore, they cannot be deprived from the vested right which had accrued to them. The learned counsel for the respondents argued that under the policy laid down by the Board of Studies, those students who had obtained third division in their B.A. Examination, were not entitled to admissions in the M.A. English, College. According to him, the Principal, Post‑Graduate College for Women, Bagh granted admissions to some female students in the College as few students had obtained Second Division in their B.A. Examination and number of seats were vacant. However, as the admissions were granted contrary to the spirit of the settled policy, the same were bad and liable to be set aside. I have heard the learned counsel for the parties and gone through the record made available with these petitions. The petitioners had disclosed all the particulars to the Administrative body of the Post‑Graduate College for Women, Bagh at the time when they moved applications seeking admissions in the M.A. English. They were given admissions by the College Administration haring competence in respect of the admissions. Since their admissions in the Post‑Graduate College for Women, Bagh which were granted to them in September, 1998, they are studying in it, therefore, valuable right has accrued to them. The respondents due to this reason have got no competence to cancel their admissions in the light of the conditions laid down by the Board of Studies. In support of this proposition, the reliance can be placed on a case titled Shahbaz v. The State", (PLD 1956 FC 46). In this case the Government had ordered the remission of the sentence of Shahbaz convict w.e.f. 14‑8‑1954. This order was rescinded on 13‑8‑1954 by the Government. The matter when came before the Supreme Court of Pakistan, the Apex Court held that the order of remission was not open to any objection as a valuable right had accrued to the convict, Shahbaz. Identical question of rescinding or recalling earlier passed order came into consideration before the Supreme Court of Pakistan in a case titled 'Pakistan through the Secretary Ministry of Finance v. Muhammad Himayatullah Farukhi", PLD 1969 SC 407, in the light of the following facts: Muhammad Himayatullah Farukhi a Member of Madras Civil Service on migration to Pakistan, was appointed in the General Administrative Reserve. He joined service in the Ministry of Economics Affairs, on the assurance that he would get starting salary per mensem in the time scale applicable to the G.A.R. Service. Subsequently, a formal order was issued fixing his initial pay at Rs.620 per mensem. It was specifically mentioned that it was without prejudice to his representation for the fixation of his initial pay at a higher level. His representation was turned down by the Prime Minister of Pakistan. He, however, continued to press his representation which was finally accepted by the President of Pakistan. The Secretary to the President conveyed him the favourable order passed by the President. But when this order was not implemented, he filed a writ petition in the High Court. While answering this writ petition, it was contended that the order of the President was withdrawn by him through a subsequent order. The petition was allowed by the High Court. An appeal was filed by the Government before the Supreme Court of Pakistan. While dismissing the same Mr. Justice Sajjad Ahmed, J. expressed the view of the Court in the following words: ‑‑‑ "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant Authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights. " The proposition in question came under consideration in case titled "Muhammad Aslam Khaki v. Vice- Chancellor, Gomal University, D.I. Khan and 2 others', PLD 1980 Peshawar 128, in the light of the following facts:‑‑‑ The Faculty of Shariah, Quaid‑e- Azam University, Islamabad invited applications for admission in LL.M. and Ph.D. Courses. Similarly, Institute of Education and Research, University of Punjab also invited applications for admission in the Course of Ph.D. in Education. Muhammad Aslam Khaki, petitioner applied for admission in both the Institutions through the Vice -Chancellor, Gomal University, D.I. Khan where he was serving as Lecturer. The Vice‑Chancellor recommended his applications. The petitioner appeared in the test and interview which was conducted for making selection for admission. He was given admission in the Institute of Education and Research, Lahore for the Ph.D. Programme 1979‑

82. He was informed about his admission vide letter, dated 20‑8 1979. Subsequently, he was also approved for admission in the LL.M. course in the Faculty of Shariah and Islamic Studies, Quaid- e‑Azam University, Islamabad. On account of misbehaviour of the petitioner, the; recommendations made by the Vice‑Chancellor, Gomal University, D.I. Khan, were withdrawn by him, and he was refused admission in the above referred Courses, by both the Universities. The, petitioner was constrained to invoke the Constitutional jurisdiction of the Peshawar High Court. The learned Court while allowing his petition, held that the petitioner had been informed about his admissions in the Universities, therefore, a right has vested to him, he cannot be deprived from the same. The relevant observation appearing in the concluding para.18 of the judgment is reproduced for the convenience of reference: ‑‑‑ "

18. Viewed in the light of what has been stated above, there is left hardly airy doubt that petitioner having been selected for admission in the Institute of Education and Research, University of the Punjab, Lahore and duly informed of the same, there was left no authority with the Vice -Chancellor to recall his recommendations unless it could be shown that they were secured from him by fraud, which, indeed has never been his case. The application for‑admission was forwarded by him to enable the: petitioner to seek admission in the said Institute. Acting on those recommendations, petitioner was called for interview and tests. He appeared and was apparently successful and was consequently selected for admission and asked to join his Course there on 2nd and 3rd of January, 1980. Thus, a valuable right to claim benefit of admission in the pursuit of higher knowledge was granted to him and this, as stated above, could not have been withdrawn by respondent No.

1. His, order withdrawing recommendations, after petitioner had been selected for admission and invited to join his studies is, therefore, set aside, being without lawful authority and of no legal effect. Since LL.M. Course in the Faculty of Shariah and Islamic Studies, Quaid‑e‑Azam University, Islamabad had commenced as far back as 20‑10‑1979, no useful purpose would be served to give any findings it that respect for it would not be possible for the petitioner to join that Course now. The costs of this petition shall be borne by respondent No. 1." The report of the above referred cases, is very clear that the principle of locus poenitentiae can be invoked by the competent Authority till the time, the decisive stage is not reached. If it is proved that the order was B conveyed and acted upon, then in such cases the consensus of case‑law developed over the years is that a valuable right is accrued to the party and such party, cannot be deprived from such vested right. In the present case, the petitioners have not concealed their third division in the B.A. Examination from the Administrative Staff of the Post‑Graduate College for Women, Bagh. Despite this fact, they were allowed admissions in the M.A. English. They in the light of their admissions are continuously attending their Classes. A valuable right, therefore, has accrued to them. By virtue of these admitted facts, the respondents, therefore, have no legal competence to deprive them from their vested rights. In view of above, while allowing these writ petitions with costs, the Impugned Notification No.5‑216/General/99, dated 24‑2‑1999, issued by respondents is held to be without lawful authority as such ineffective and inoperative against the present petitioners. H.B.T./2/AJ&K Petitions allowed.